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#MeToo: Sexual Harassment is Alive, and It Is Not Well

January 2, 2018

The recent dismissal of Hollywood producer Harvey Weinstein from the company that bore his name has again opened wounds of victims of sexual assault and sexual harassment. While the long-standing recognition in Title VII of the Civil Rights Act of 1964 that sexual harassment is a form of sex discrimination has gone a long way in reducing incidents of sexual harassment in the workplace, problems continue to linger, and they may find themselves reaching the top executive levels in an organization. This article revisits the development of sexual harassment law and poses questions about how to foster a healthier atmosphere in today’s complex workplace environment.

Men Are From Mars, Women Are From Venus

A female associate attorney is in another city for a court hearing the following day. After working late with a male partner to prepare for the hearing, she waits with him for an elevator to go to their rooms. The associate makes small talk and says, “I hate sleeping in hotel rooms. I never get a good night’s sleep.” The partner jokes, “You can sleep in my room.”

Whether the male partner was really propositioning the female associate might be open to debate. However, the question in terms of creating a healthy work environment for all employees is whether the response made the female associate uncomfortable. Is it the type of comment that may make the female associate question her value as an attorney versus being an object of desire for the male partner?

This example was purposefully ambiguous and potentially innocuous because in many cases, the lines are blurred. But that doesn’t excuse the conduct or minimize how women feel about themselves every day in the workplace. The examples of workplace harassment being posted as part of the social media “#MeToo” campaign have universally been much worse, where women of all ages have detailed horrific accounts of what they have had to endure to stay employed or what caused them to resign.

The Law

Title VII prevents discrimination because of sex. Courts have interpreted this prohibition to include sexual harassment that creates a hostile work environment. They have also interpreted this prohibition to include sexual harassment that results in quid pro quo, meaning that the failure to entertain a sexual advance of a supervisor leads to negative consequences for one employee or consenting to sexual advances leads to a reward for another employee.

Wisconsin state law also has a third form of sexual harassment. Employment discrimination based on sex is prohibited if the employer engages in unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature, even if the employer doesn’t create an inherently hostile work environment. The definition of “employer” includes either the owner of the company or an agent in a significant position of responsibility.

Employers can protect themselves from some forms of sexual harassment by having a known comprehensive sexual harassment policy that has multiple reporting avenues and by taking reasonable remedial measures in response to sexual harassment allegations.

Our Changing Workplace

Sexual harassment is an equal opportunity problem. We lived through President Bill Clinton and his questionable escapades (which involved alleged workplace sexual advances). Last year, we heard the “locker room talk” excuse in response to the Access Hollywood tape, which clearly seemed to implicate then candidate Donald Trump in sexually harassing incidents.

We live in an age of YouTube, Tinder, Twitter, and Facebook. People are working longer hours, and many work multiple jobs. Workers switch employers more frequently than ever. As a consequence, many people find their significant others and spouses directly or indirectly through workplace introductions. For most employers, there’s no such thing as a sex-free workplace.

Against this backdrop, women almost universally still feel that there’s a lingering inequality in terms of opportunities and compensation. At the same time, there’s a backlash against “political correctness” that fosters hostility toward a holistic view of how women should be treated in and out of the workplace.

Preventive Measures

Most sexual harassment policies and training focus on the do’s and don’ts for obvious reasons. Some employers have adopted what they call “zero-tolerance” policies to eradicate sexual harassment and terminate employees for any type of proven harassment. However, these approaches, which can be a necessary part of prevention, may not get to some of the root causes of why women perceive certain conduct and actions as harassment. Just like an argument between partners over which television show to watch may be about more than just that particular issue, many women bring their previous history and experiences into the workplace. Those episodes may color how they perceive particular exchanges.

Vicki Schultz of Yale Law School has written extensively on how the current legal focus on hostile work environment and quid pro quo sexual harassment fails to connect to a larger system of workplace gender inequality that can relegate women to inferior jobs. She argues employers simply accept the gender segregation of work as a “neutral” background condition rather than defining it as the structural context in which harassment flourishes (and which it fosters).

The potential key to reaching those men (and yes, it’s almost always men) who may engage in blatant, ambiguous, or unintentional unhealthy interactions with women may be to educate them on why women feel the way they do and why they may perceive an objectively identifiable action completely differently than their male counterparts. While race discrimination and racial harassment are generally less open to debate, there are similarities in how people of color process particular events because of their own experiences and those of their families in dealing with years of racism inside and outside the workplace.

In other words, it’s rarely just about a single interaction or small talk. Every interaction in the workplace potentially carries with it a reminder of every time a woman has felt humiliated or demeaned because she’s a woman. While some may dismiss such feelings as being overly sensitive or overreacting, the point is that the feelings are real. If a man constantly ignores the backstory and is oblivious to a woman’s concern about inequality and mistreatment, what may be perceived by the man as innocent banter may be perceived by the woman as hurtful belittlement.

Bottom Line

Employers have their hands full with hundreds of daily fires that need putting out. You can’t be tasked with solving all of society’s ills. Whether “#MeToo” is lost in a news cycle or builds into a long-term movement remains to be seen. Regardless, you should take note that while your policies and actions may be 100 percent gender-neutral, the legacy of past discrimination, abuse, and harassment against women is still real.

Broader thinking among management about how to factor this continued legacy into policies and training may result in speeding up the road to recovery. If the goal is set higher than simply preventing illegal discrimination and also focuses on making the workplace healthier for both women and men, that may be a good place to start.

This article, slightly modified to note recent updates, was featured in the November 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "#MeToo: Sexual Harassment is Alive, and It Is Not Well," contact Saul C. Glazer at sglazer@axley.com or 608.260.2473.

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